Scottish Sheriff Court Decisions

Sheriffdom of Lothian and Borders at Edinburgh

Judgement

by

Sheriff Kathrine EC Mackie

In causa

Mr Craig Montgomery, 4 Hawk Crescent, Dalkeith, Midlothian. EH22 2RB

Pursuer

Against

Direct Line Insurance PLC a Company incorporated under the Companies Acts and having its Registered Office at 3 Edridge Road, Croydon, Surrey. CR9 1AG

Defenders

Edinburgh January 2011

The Sheriff having resumed consideration of the cause finds the following facts admitted or proved:-

[1]. The parties are as designed in the instance. The pursuer is aged 41 years. He is married with two children. He is employed as a joiner.

[2]. On 22^nd July 2009 a road traffic accident occurred between a vehicle being driven by the pursuer and a vehicle being driven by the defenders' insured in Salters Road Dalkeith. Liability for the accident was admitted.

[3]. The pursuer hit his head at the front of the vehicle but was not knocked unconscious. He required to be cut out from the vehicle. He was taken by ambulance to the Accident & Emergency Department of the Royal Infirmary, Edinburgh. X-rays were taken of his chest, spine and pelvis. No fractures were found. He was discharged home with analgesia.

[4]. The pursuer suffered a soft tissue injury of his right shoulder and muscular spasm of the lumber region. He attended his General Practitioner about 10 days after the accident. He continued to suffer pain in his back and right shoulder. He was referred to a physiotherapist at Meadowbank Clinic, Edinburgh. He attended 8 sessions of physiotherapy. Four months after the accident he suffered stiffness and pain in his right shoulder on occasions, particularly in the mornings. He suffered occasional flashbacks of the accident.

[5]. The pursuer was off work for one week. He suffered some pain during his work as a joiner. He was unable to pursue his hobby of playing football for about 4 months.

[6]. Full recovery was achieved in 6 months.

[7]. As a result of the injuries sustained the pursuer required assistance from his wife for a number of necessary services. He was unable to provide gardening services to his mother. The value of said services is £100 inclusive of interest.

[8]. As a result of the accident the pursuer suffered inconvenience. The value of said inconvenience is £25 inclusive of interest.

Finds in fact and in law:-

[1]. The accident was caused by the fault and negligence of the defenders' insured.

[2]. The pursuer having sustained loss, injury and damage as a consequence of the fault and negligence of the defenders' insured the pursuer is entitled to reparation therefor.

[3]. A reasonable award of solatium in respect of the pain and suffering sustained by the pursuer is £2,675.

[4]. A reasonable award in respect of services under the Administration of Justice (Scotland) Act 1982 is £100 inclusive of interest.

[5]. A reasonable award in respect of inconvenience is £25 inclusive of interest.

Accordingly, Finds the defenders liable to the pursuer (1) in the sum of Two Thousand Six Hundred and Seventy Five Pounds (£2,675) Sterling and (2) in the sum of One Hundred and Twenty Five (£125) Sterling; reserves meantime all questions of interest and expenses and assigns as a hearing thereon.

NOTE

[1].                       The pursuer seeks decree in the sum of £3,175 together with interest at the rate of 8% from 22^nd July 2009 and expenses as reparation for injuries sustained in a road traffic accident in Dalkeith on that date. Liability is admitted.

[2].                       The action called before me for proof on 24^th January 2011. A Joint Minute was lodged whereby it was agreed that the medical report prepared by Dr Alison Hollway represented her evidence and that the terms of the report represented an accurate description of the nature and extent of the injuries sustained and his treatment and prognosis. It was agreed that the pursuer fully recovered within the time period stated in the report. It was also agreed that services under the Administration of Justice (Scotland) Act 1982 were valued in the sum of £100 inclusive of interest and that inconvenience was valued at £25 inclusive of interest. No other evidence was led.

[3].                       The only issue in dispute was the appropriate amount of solatium in respect of the injuries sustained by the pursuer. The pursuer's agent, Mr Harper, submitted that the appropriate amount was £2,675. The defender's agent, Miss Devlin, submitted that the appropriate amount was £1,700. Both agents referred to a selection of previous decisions, largely unreported. Many of these decisions have been referred to by these agents in other similar actions. Each agent sought to distinguish the other's selection of decisions.

[4].                       The decisions referred to may be summarised as follows:-

Pursuer's Authorities

1. Frame-v-Churchill Insurance Company Limited 16^th November 2009 Dundee Sheriff Court - 51 - neck, right shoulder and upper back pain - analgesia - absence from work 5 weeks - full recovery 6 months - £2,400 now £2,496.

2. Pugh-v-Scott 2002 Rep.L.R. 112 - 32 - whiplash to neck - full recovery 5 months - £2,500 now £2,990.

3. Moir-v-Wilson 1^st July 2002 Kilmarnock Sheriff Court - 32 - pain in neck, back and shoulders - full recovery 7 months - no keep fit for 4 months - £3,000 now £3,780.

4. Spencer-v-Baron 4^th February 2008 Edinburgh Sheriff Court - 44 - neck injury - substantial recovery 6 months - £3,500 now £3,640.

5. Symington-v-Milne 2007 Rep.L.R. 63 - 30s - neck - recovery 6 months - £2,250.

6. Brown-v-Forsyth & MIB (undated) Aberdeen Sheriff Court - age not stated - neck and shoulders - recovery about 3 months - complex medical position with novus actus - £2,500 now £3,150.

7. Buxton-v-Direct Line Insurance PLC 29^th December 2010 - age not stated other than "young" - back pain - full recovery 6 months - £2,000.

Defender's Authorities

1.                       Peddie-v-Saga Insurance 14^th December 2009 Hamilton Sheriff Court - 30 - neck - full recovery 4 months - £1,250.

2.                       Edgington-v-Shepherd (undated) Perth Sheriff Court - 42 - neck, shoulders, foot and back - full recovery 5 months - £1,650.

3.                       Sivewright-v-Sands 6^th May 2009 Dundee Sheriff Court - 70 - neck and right shoulder - pre-existing history - unable to play snooker 5 weeks - full recovery 9 months - £1,800.

4.                       Ashton-v-Skews 19^th January 2008 Edinburgh Sheriff Court (Appeal) - age not stated - neck and lower back - absence from work one week - full recovery 9 months - £2,000 now £2,080.

5.                       Sharp-v-Watt 19^th March 2008 Linlithgow Sheriff Court - 52 - neck - delay in receiving physiotherapy - unable to garden 3 months - full recovery 11 months - £2,000 now £2,080.

6.                       Traynor-v-Kidd 1^st August 2008 Dundee Sheriff Court - age not stated - neck - no swimming 4 1/2 months - full recovery 11 months - £2,250 now £2,340.

7.                       Valentine-v-McGinty 20^th May 2008 Linlithgow Sheriff Court -38 - neck - mainly pain free 6 months - full recovery 1 year - no aerobics 3 months - £2,250 now £2,340.

8.                       Hall-v-Cockburn 16^th February 2009 Ayr Sheriff Court - 73 - arms, chest, legs and neck - mainly pain free 4 months - full recovery 1 year - £2,250.

[5].                       As Sheriff Holligan observed in Buxton-v-Direct Line Insurance PLC "It takes little ingenuity to identify points of distinction between the various authorities.".

[6].                       As has been said repeatedly the proper approach in a case such as this is to award such a sum as will represent and be generally regarded as reasonable compensation to the pursuer for the loss suffered as a result of the accident. Previous decisions can only be a general guide as to a range within which an award may fall given that the individual facts of cases and the effect on and reactions of an individual to the consequences of an accident will inevitably differ. Sheriff Principal Bowen QC, in Symington v Milne, observed that it is important that there should be a degree of consistency in awards of a similar nature. It must be questionable whether a subjective and self-serving selection of previous, and largely unreported decisions, properly provides the court with the necessary information from which to ascertain the appropriate range of awards to achieve that degree of consistency. I was not referred to the other decisions mentioned in the cases to which I was referred, which decisions must be assumed to be relevant to cases such as the present. Nor was I referred to other reported decisions, which would be of greater authority.

[7].                       The range of awards in the cases referred to by the pursuer's agent is, taking into account inflation, £2,000 to £3,780. The pursuer's agent's submission is that in this case solatium is slightly below the mid point of the range.

[8].                       The range of awards in the cases referred to by the defender's agent is, applying inflation, £1,250 to £2,340. The defender's agent submitted that of the cases referred to the case of Ashton was most similar to the present case. Nonetheless the defender's agent sought to distinguish the case by submitting that the injury in that case was more severe than the present, the pursuer in the present case having sustained only a muscular spasm and not soft tissue injury to the back. However, it is clear from the terms of the report by Dr Holloway that the pursuer in the present case "continued to complain of back and right shoulder pain" and attended 8 sessions of physiotherapy as a consequence. Accordingly the injury to his lumbar region was not of the momentary nature that the defender's agent appeared to be implying and might be understood by the use of the term "spasm". In so far as it is possible to ascertain the precise diagnosis of Mr Ashton's injuries I note that in paragraph 3 the Sheriff Principal records that "whiplash injury and bruised muscles were diagnosed.". While there are some obvious similarities between that case and the present, the sort of points of distinction referred to by Sheriff Holligan can also be found such as the circumstances of the accident and the fact that the pursuer in the present case had to cut free from his vehicle, and it follows from that that he would have been trapped for some time, the absence of any physiotherapy and the absence of an inability to enjoy any hobby. The age of Mr Ashton is unknown. In my opinion, a view apparently shared by Sheriff Davidson, the age of the pursuer is a relevant factor. In Sivewright Sheriff Davidson distinguished a number of cases to which he was referred on the ground that the age of the pursuer was materially different from the age of Mr Sivewright.

[9].                       In my opinion the present case, having regard to the whole circumstances, is more serious than that of Ashton. In Spencer, the pursuer, albeit a woman, was aged 44 years, only slightly older than the present pursuer. She sustained a whiplash injury to her neck. Apart from a tingling in her arm she had recovered substantially after 6 months. She was absent from work for one week. Her work, unlike that of the pursuer, did not involve physical labour. She returned to her hobby of running after only two weeks. She did not attend physiotherapy because the pain was manageable. Again it is possible to find points of distinction but there are also many points of similarity. It may be that on one view the present case might be considered more serious particularly given that the present pursuer was unable to resume his hobby of football for some 4 months. The award in that case is now worth £3,640. Comparing the cases of Ashton and Spencer illustrates how subjective these decisions can be.

[10].                  In the circumstances of the present case I consider that solatium can properly be assessed in the sum of £2,675 as submitted by the pursuer's agent.

[11].                  Services and inconvenience are agreed in the total sum of £125 inclusive of interest.

[12].                  I was not addressed on the question of expenses or interest. In normal course, I would have found that expenses followed success. Interest would run at the rate of 4% on the sum of £2.675 from 22^nd July 2009 for a period of 6 months and thereafter at the rate of 8% until payment. It may be that these matters are capable of agreement and that a hearing will be unnecessary.